The thing that wouldn’t leave

Lawmakers to return to Raleigh yet again; agenda may include dangerous “de-reg” proposal

The North Carolina General Assembly will return to Raleigh yet again this week. Despite abysmal poll numbers, the toxic national political environment and their close association with a president of the United States who continues to set new standards for mendacity and outrageous behavior, legislative leaders will commence yet another special session on Friday to take up any number of matters that could include gubernatorial vetoes, new legislative maps, pending legislation from the “long session” that adjourned in June and maybe even constitutional amendments. Despite the Friday-at-noon start time, actual legislative action is not expected to get underway in earnest until next week – emphasis on the word expected.

That members of the general public (and even close observers) have only a general idea of what might be on the legislative agenda is, of course, par for the course these days. Republican legislative leaders, who first came to power back in 2011 under a pledge to clean up government, have, instead, become ever more enamored of secrecy, surprise and lightning quick action in recent years. With conservative supermajorities almost always poised to rubber stamp whatever legislative leaders place on the House and Senate calendars and a growing number of proposals going right to a final vote with only the most cursory of public hearings (and sometimes without any public discussion at all), legislative sessions have come to feel more and more superfluous and ceremonial.

“The legislative process is now officially a bad joke. House and Senate leaders hold sessions whenever they want, consider whatever they want, ignore their own rules whenever they want and don’t care that the public and most rank and file legislators have no idea what is happening.

And maybe saddest of all is that the media for the most part, no longer covers this outrageous behavior as part of the story.”

An understandable reason for stealth?

While some of the explanation for this behavior can probably be ascribed to the simple greed and sloth that so often afflict comfortably ensconced politicians, much of it is also likely explained by the substance of the agenda legislative leaders are pushing. After all, when you know your agenda chiefly favors special interests and is sure to attract scathing critiques and lots of public protest, maybe operating in back rooms and under cover of darkness is the most pragmatic strategy.

For a classic example of such legislation, consider a dreadful proposal that could be enacted next week on the subject of state government regulations. It turns out that during the closing days of the legislative “long session” in June, conservative lawmakers concocted a bill (House Bill 162) that would do some remarkable and destructive things when it comes to government regulations designed to protect the public.

“In essence, [the Department of Environmental Quality] could not make permanent rules that would be more stringent than the federal government’s, aka, the EPA’s —- even in the case of ‘serious and unforeseen threats.’ While existing legislation already suffocates DEQ’s rule-making powers, this measure would up the ante.

If you need an example of such a threat, look no further than the GenX drinking water crisis. It’s serious. It’s unforeseen. And there are no federal rules governing maximum allowable amounts in drinking water. So ostensibly, DEQ could make a temporary rule setting maximum limits of GenX, but the agency would be prohibited from making those rules permanent. And given the recalcitrance of the EPA to strengthen any regulations, it could be years before the feds issue rules regarding emerging contaminants like GenX.

This legislation clearly favors industry over the workaday folks. In addition, no agency could enact a rule that has a financial impact of $100 million or more. Environmentally speaking, it’s easy to ring up $100 million in expenses because it’s costly to clean up polluted sites, even to bare minimum industrial standards. And the bill doesn’t account for financial benefits of a rule. So if the rule produced $200 million in benefits but $100 million in costs, then that $100 million net benefit would still be a dealbreaker.”

The bill would also impose a new supermajority vote requirement at the Rules Review Commission on rules that result in a cost of more than $10 million over five years or less. All told, it’s really a fairly stunning – and, as is so often the case with a lot of conservative proposals at the General Assembly these days – ham-handed proposal. As experts at the Southern Environmental Law Center observed in a recent memo:

The proposal doesn’t distinguish between a rule that would impose a small cost on a large number of people versus a rule that imposes a substantial economic burden on a small number of regulated people or businesses.

The $100 million impact bar would include rules relating to non-environmental matters like health immunizations, public education programs, and even state electronic billing and 911 Board rules, among many others.

Since the $100 million/five year cap represents aggregated costs, a rule that has widespread impact may bump up against the cap even though it does not impose an unreasonable cost on any one entity. The issue will arise even more frequently with the $10 million/5 year aggregated cost threshold that triggers supermajority approval of a rule.

The bill does not include any exceptions (i.e., for rules required to meet a federal mandate, comply with a court order, or address a significant threat to public health and safety). This increases the odds of a “train wreck scenario” in which federal law requires adoption of a major state rule, but the commission can’t muster a supermajority

The current Administrative Procedures Act already delays a rule’s effective date for legislative review if the Rules Review Commission receives 10 letters of objection. HB162 would automatically delay a rule for legislative review if the fiscal note indicated a five-year aggregated cost of $10 million or more even if no one objected to the rule.

The automatic legislative review for major rules substantially reduces the incentive for stakeholders to negotiate in the rulemaking process and makes it almost a certainty that all major rules proposals will end up in the General Assembly.

Just one of many…we think

Sadly, the absurd “de-reg” proposal is far from the only measure that lawmakers may take up in the coming days. Though they should have acted months and months ago in response to a federal court order, it is expected that legislators will take up and pass yet another series of state legislative maps. What’s more, by all indications, the new maps will have been designed by national conservative gerrymandering guru Tom Hofeller as part of a shameless effort to drag out the process as long as possible.

And, perhaps most frighteningly, there remains the chance that lawmakers may take up constitutional amendments. Rumors persist that a constitutional amendment to enact some kind of voter ID/voter suppression law remains on the table, as does a Senate-passed measure that would cap the state income tax and, perhaps, even a proposal to remake the state’s judiciary.

While there is a solid case to be made that North Carolina has grown to the point at which it would benefit from a full-time (or close to full-time) legislature, this – the stringing together of countless, essentially secret special sessions — is not how such a change should come about. Let’s hope the upcoming session does as little damage as possible, that lawmakers evacuate Raleigh straightaway and return next in 2018 with a new commitment to open and transparent government.

About the author

Rob Schofield, Director of NC Policy Watch, has three decades of experience as a lawyer, lobbyist, writer and commentator. At Policy Watch, Rob writes and edits daily online commentaries and handles numerous public speaking and electronic media appearances. He also delivers a radio commentary that’s broadcast weekdays on WRAL-FM and WCHL and hosts News and Views, a weekly radio news magazine that airs on multiple stations across North Carolina.rob@ncpolicywatch.com
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